United States Court of Appeals

FOR THE EIGHTH CIRCUIT

 ___________

 No. 98-1683

 ___________

Janet Kinman, *

*

Plaintiff/Appellee, *

*

v. *

*

Omaha Public School District; *

Robert Whitehouse, individually and *

in his official capacity; John Mackiel, *

Ph.D., individually and in his official * Appeals from the United States

capacity, * District Court for the

* District of Nebraska.

Defendants/Appellants, *

*

Sheryl McDougall, individually and *

in her official capacity, *

*

Defendant. *

 ___________

 No. 98-2018

 ___________

Janet Kinman, *

*

Plaintiff/Appellant, *

*

v. *

*

Omaha Public School District, *

*
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Defendant, *

*

Robert Whitehouse, individually and *

in his official capacity; John Mackiel, *

Ph.D., individually and in his official *

capacity, *

*

Defendants/Appellees, *

*

Sheryl McDougall, individually and *

in her official capacity, *

*

Defendant. *

 ___________

 No. 98-2994

 ___________

Janet Kinman, *

*

Plaintiff/Appellant, *

*

v. *

*

Omaha Public School District; *

Robert Whitehouse, individually and *

in his official capacity; John Mackiel, *

Ph.D., individually and in his official *

capacity, *

*

Defendants, *

*

Sheryl McDougall, individually and *

in her official capacity, *

*

Defendant/Appellee. *
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___________

Submitted: November 19, 1998

Filed: March 19, 1999

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Before McMILLIAN, WOLLMAN, and HANSEN, Circuit Judges.

___________

WOLLMAN, Circuit Judge.

The Omaha Public School District (the district), assistant superintendent John

Mackiel, and principal Robert Whitehouse appeal from a jury verdict awarding Janet

Kinman damages on her claim of sexual harassment brought under 20 U.S.C. §

1681(a) (Title IX). Kinman cross-appeals, contending that the district court erred by

failing to grant her motion for default judgment against Sheryl McDougall on

Kinman’s 42 U.S.C. § 1983 claim. We reverse the judgment entered in favor of

Kinman, as well as the denial of the motion for default judgment.

I.

This case is before us a second time. We earlier affirmed the district court’s

grant of summary judgment in favor of the district, Mackiel, and Whitehouse on

Kinman’s section 1983 claim because we found that their conduct did not rise to the

level of deliberate indifference as a matter of law. See Kinman v. Omaha Pub. Sch.

Dist., 94 F.3d 463, 467 (8th Cir. 1996) (Kinman I). We also reversed the district

court’s grant of summary judgment in favor of the district, Mackiel, and Whitehouse

on Kinman’s Title IX claim, holding that questions of fact existed for the jury.

The facts can be summarized as follows. From September 1986 through May

1990, Kinman was a student at Bryan High School in Omaha, Nebraska. During the
1Suits against school officials in their official capacity are treated as suits

against the school district itself. See Smith v. Metropolitan Sch. Dist. Perry

Township, 128 F.3d 1014, 1021 n.3 (7th Cir. 1997), cert. denied, 118 S. Ct. 2367

(1998) (citing Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)).

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1987-88 school year, McDougall was Kinman’s sophomore English teacher. They

remained friends during the following summer. At some point during that summer,

Kinman attempted suicide. She told her mother that one of the reasons for her

suicide attempt was that McDougall was trying to convince her that she (Kinman)

was gay. 

Kinman began drinking during her junior year. In response, McDougall took

her to a lesbian Alcoholics Anonymous meeting. During the summer of 1989,

Kinman and McDougall engaged in sexual relations. The two had an ongoing sexual

relationship following this encounter.

On October 16, 1989, the district, through Whitehouse, was made aware of

allegations of a sexual relationship between Kinman and McDougall. After receiving

this information, the district removed Kinman from McDougall’s study hall. The

sexual relationship between the two temporarily ended following this action.

After Kinman’s graduation in the spring of 1990, she resumed sexual relations

with McDougall. Subsequently, the district was notified that the two had resumed

contact, and it investigated the nature of the ongoing relationship. After the district

confirmed the sexual nature of this relationship, McDougall was terminated for

violating the district’s policy prohibiting teachers from engaging in sexual

relationships with former students within two years of graduation. In addition,

McDougall’s teacher’s license was revoked in 1992.

Kinman brought this action against the district and Mackiel, Whitehouse, and

McDougall individually and in their official capacities1. Following our decision in
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Kinman I, a trial was held on the Title IX claim. The district court dismissed the

claims against Mackiel and Whitehouse in their individual capacities, and the jury

returned a verdict in favor of Kinman on the official capacity claim. The district court

denied the defendants’ post-trial motions, and this appeal followed.

II.

In Kinman I, we held that the appropriate standard for school district liability

in a Title IX action was whether it knew or should have known of the harassing

behavior. See 94 F.3d at 469. While the present appeal was pending, the Supreme

Court ruled upon the standard of school district liability discussed in Kinman I. See

Gebser v. Lago Vista Indep. Sch. Dist., 118 S. Ct. 1989 (1998). The Court noted that

the express remedial scheme of Title IX is predicated upon notice to an “appropriate

person” and an opportunity to rectify any violation. See id. at 1999 (citing 20 U.S.C.

§ 1682). “[I]t would frustrate the purposes of Title IX to permit a damages remedy

against a school district for a teacher’s sexual harassment of a student based on

principles of respondeat superior or constructive notice, i.e., without actual notice to

a school district official.” Id. at 1997. The fact that a teacher had actual notice as a

wrongdoer is not pertinent to the analysis of notice to the school district. See id. at

2000. Accordingly, the Court held that a plaintiff in a Title IX case may not recover

against a school district without first showing that a district official with the authority

to address the complained-of conduct and take corrective action had actual notice of

the harassing behavior and failed adequately to respond. See id. at 1999.

Once actual notice of discriminatory behavior is shown, the liability of the

school district must be predicated on an official decision not to remedy the violation.

See id. The Court explained that a heightened standard of liability was necessary to

protect a school district from liability from its employees’ independent actions. Thus,

it held that to support liability under Title IX, the school district’s response to

harassing behavior “must amount to deliberate indifference to discrimination.” Id.
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Under the law of the case doctrine, “when a court decides upon a rule of law,

that decision should continue to govern the same issues in subsequent stages in the

same case.” Morris v. American Nat’l Can Corp., 988 F.2d 50, 52 (8th Cir. 1993)

(quoting Arizona v. California, 460 U.S. 605, 618 (1983)). This doctrine does not

apply, however, “when an intervening decision from a superior tribunal clearly

demonstrates the law of the case is wrong.” Morris, 988 F.2d at 52. Thus, we must

apply the actual knowledge and deliberate indifference standard articulated in Gebser.

In light of Gebser, we are compelled to reverse the judgment, for in Kinman I

we held that the district’s response upon being put on notice of McDougall’s conduct

could not be characterized as constituting deliberate indifference. See 94 F.3d at 467.

We found that once Mackiel and Whitehouse were alerted to the possibility of a

sexual relationship between Kinman and McDougall, they did not “turn a blind eye

and do nothing.” Id. at 467. Instead, they investigated those allegations and initiated

termination proceedings once they obtained conclusive proof of that relationship.

Accordingly, the district, Mackiel, and Whitehouse are entitled to judgment as a

matter of law.

III.

In addition to the claims brought against the district, Mackiel, and Whitehouse,

Kinman brought an action against McDougall individually under section 1983 and

Title IX. McDougall failed to appear at any stage of the proceedings. The district

court entered default judgment against her on November 4, 1993. It vacated that

default judgment, however, on November 10, 1993, stating that default judgment was

inappropriate until the case was adjudicated as to all defendants.

Kinman’s end-of-trial motion for default judgment against McDougall was

denied by the district court. Following the entry of the order denying the other

defendants’ post-trial motions, Kinman renewed her motion for entry of default
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judgment against McDougall. The district court denied the motion as moot, stating

that “[j]udgment has already been entered by the court against Sheryl McDougall in

her official capacity,” and that “liability does not lie under Title IX against persons

in their individual capacity.” See Order of July 1, 1998 at 1.

Kinman argues that default judgment could be entered against McDougall

under section 1983 based on a violation of Title IX. We disagree. Title IX operates

to condition “an offer of federal funding on a promise by the recipient not to

discriminate, in what amounts essentially to a contract between the Government and

the recipient of funds.” Gebser, 118 S. Ct. at 1997. “The fact that title IX was

enacted pursuant to Congress’s spending power is evidence that it prohibits

discriminatory acts only by grant recipients.” Rowinsky v. Bryan Indep. Sch. Dist.,

80 F.3d 1006, 1012 (5th Cir.), cert. denied, 117 S. Ct. 165 (1996). Several circuits

have held that because they are not grant recipients, school officials may not be sued

in their individual capacity under Title IX. See Floyd v. Waiters, 133 F.3d 786, 789

(11th Cir.), vacated and remanded, 119 S. Ct. 33 (1998); Smith, 128 F.3d at 1019;

Lipsett v. University of Puerto Rico, 864 F.2d 881, 901 (1st Cir. 1988); see also

Lilliard v. Shelby County Bd. of Educ., 76 F.3d 716, 730 (6th Cir. 1996) (Nelson, J.,

concurring) (stating that only educational institutions may be found liable for Title

IX violations). See also National Collegiate Athletic Ass’n v. Smith, 1999 WL 83907

(U.S.) (February 23, 1999) (receipt of dues from member colleges and universities

does not subject NCAA to suit under Title IX). Agreeing with these holdings, we

conclude that Title IX will not support an action against McDougall in her individual

capacity. 

In addition to her Title IX complaint, however, Kinman also alleged violations

of the Fourteenth Amendment as a basis for her section 1983 claim against

McDougall in her individual capacity. In Kinman I, we dismissed the section 1983

claims against the district, Mackiel, and Whitehouse. See 94 F.3d at 467. Nothing

in our decision in Kinman I, however, affects Kinman’s ability to bring a section
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1983 action against McDougall individually. Likewise, Gebser does not bar such an

action, for the Court made it clear that that decision has no effect on an individualcapacity suit against a teacher brought under state law or under section 1983. See

Gebser, 118 S. Ct. at 2000.

To hold McDougall liable under section 1983, Kinman must show that the

conduct complained of was performed under color of state law and that the conduct

deprived her of rights, privileges, or immunities secured by the Constitution or

Federal law. See Roe v. Humke, 128 F.3d 1213, 1215 (8th Cir. 1997); Lipsett v.

University of Puerto Rico, 864 F.2d at 902. Kinman alleged that McDougall deprived

her of “her constitutionally protected substantive right to be free from such bodily

harm and sexual molestation and abuse as secured by the Due Process and/or Equal

Protection Clauses of the 14th Amendment to the U.S. Constitution.”

We recently noted that “[a] number of circuit courts have found due process

violations when state actors have inflicted sexual abuse on individuals.” Rogers v.

City of Little Rock, Arkansas, 152 F.3d 790, 795 (8th Cir. 1998). We also found that

a claim that a state actor coerced a citizen into having non-consensual sex could rise

to the level of a due process violation. See id. at 796 (citing Haberthur v. City of

Raymore, Missouri, 119 F.3d 720, 723 (8th Cir. 1997)); see also Doe v. Taylor Ind.

Sch. Dist., 15 F.3d 443, 450-52 (5th Cir. 1994) (stating that sexual abuse of a student

by a school teacher violated student’s constitutional right to bodily integrity).

Accordingly, we conclude that Kinman stated a valid cause of action against

McDougall and that the district court should have considered her motion for entry of

default judgment on the merits. 

The judgment against the district, Mackiel, and Whitehouse is reversed, and the

case is remanded to the district court with directions to dismiss the complaint as to

those defendants. The order denying Kinman’s motion for default judgment against

McDougall in her individual capacity is reversed, and the case is remanded to the
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district court for further consideration of that motion in accordance with the views set

forth in this opinion.

It is so ordered.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.